DEED OF LEASE
THIS DEED OF LEASE, is hereby made and entered into as of the 17th day
of November, 1997, by and between Figgie International Real Estate Inc., a
corporation registered in the State of Delaware in the United States of America
("Lessor"), and Snorkel Elevating Work Platforms Limited, a corporation having
its registered office in Levin, New Zealand ("Lessee").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement between
Lessor, Lessee and the other parties named therein dated as of July 19, 1997, as
amended (the "Purchase Agreement"), Lessor has agreed to sell and Lessee has
agreed to purchase certain assets and the business, as a going concern (the
"Business"), of the Snorkel division of Figgie International, Inc., a Delaware
corporation and an affiliate of Lessor (the "Seller"); and
WHEREAS, in accordance with the terms of the Purchase Agreement, Lessor
has agreed to provide Lessee with the right to lease certain Levin, New Zealand
property for ten (10) years with an option to purchase such property pursuant to
the terms set forth herein (the "Lease").
NOW, THEREFORE, in consideration of the covenants, conditions,
agreements and stipulations herein contained and in the Purchase Agreement, the
parties hereto agree as follows:
1. Lease and Term. Lessor does hereby lease unto Lessee the premises
described on Schedule A attached hereto. To have and to hold such premises,
together with all of Lessor's rights and easements appurtenant thereto,
buildings and other improvements now or hereafter erected on the premises (the
"Premises") for a term which commences on the date hereof and ends on the tenth
(10th) anniversary of the date hereof; provided, however, that Lessee shall have
the right to terminate this Lease at any time by providing (a) Lessor with sixty
(60) days advance written notice of termination or (b) the Seller with thirty
(30) days advance written notice pursuant to Section 7.6(d) of the Purchase
Agreement.
2. Quiet Enjoyment and Representations by Lessee. Lessor hereby
covenants not to interfere with and to permit Lessee full, complete and quiet
enjoyment of the Premises throughout the term of this Lease. In addition, Lessor
covenants that it will not take any actions which would restrict or impede its
ability to perform its obligation hereunder including, without limitation,
mortgaging or encumbering its title to the Premises. Lessor makes no other
representations and warranties (other than those made in the Purchase Agreement)
with respect to the Premises.
3. Fixed Rent. Lessee, in consideration of its right to use and enjoy
the Premises as aforesaid, covenants and agrees to pay unto Lessor in lawful
currency of the United States of America, rent of One Thousand Two Hundred
Dollars ($1,200.00) per year ("Fixed Rent"), payable annually in advance on the
first day of each year throughout the term of this Lease.
2
4. Payment of Other Expenses. It is understood and agreed that this
Lease is a "triple net lease", and that, throughout the term of this Lease, in
addition to the Fixed Rent, Lessee will pay, or cause to be paid, all real
estate taxes and assessments and all costs and expenses incurred in connection
with or relating to the ownership or operation of the Premises, including but
not limited to all insurance and utility costs relating to the Premises. Lessee
shall have the right to pay all "triple net" expenses, including but not limited
to real estate taxes and assessments, directly to the supplier or governmental
entity or assessor; provided that upon request therefor, Lessee promptly
provides Lessor with proof of payment of all such "triple net" expenses. Upon
its receipt of any bills or notices relating to such expenses, including but not
limited to those regarding real estate taxes and assessments, the receiving
party shall promptly send copies of such bills and notices to the other party.
5. Maintenance, Alterations and Ownership of Improvements. Lessee shall
maintain the Premises (except with respect to those environmental matters for
which Lessee is not providing Lessor with indemnification hereunder), including
any buildings or improvements now or hereinafter erected on the Premises, in
compliance with applicable laws in all material respects. In the event that
Lessor notifies Lessee that Lessee's use of the Premises will violate the terms
of Lessor's credit agreements (and Lessor represents that it has no present
knowledge of any such violation), Lessee and Lessor agree to reasonably
cooperate with each other in an effort to prevent the occurrence of any such
violation; provided that, Lessee shall not be obligated to incur any
unreasonable expense or take any
3
action which could reasonably be expected to have a material adverse effect on
its use and operation of the Premises. Lessor shall have no obligation to
maintain any buildings or improvements now or hereinafter erected on the
Premises. Lessee shall have, and is hereby granted, the right to alter the
interior of any building and to demolish or otherwise modify the Premises as it
sees fit; provided that, with respect to structural alterations, demolitions or
modifications only, all plans and specifications in connection therewith are
provided to Lessor in advance and that all alterations, demolitions or
modifications are conducted in compliance with applicable law in all material
respects. Upon the expiration or termination of this Lease, any and all
improvements located on the Premises shall remain the sole property of Lessor.
All personal property, such as machinery and operating equipment, located on the
Premises and owned by Lessee shall remain the property of Lessee and will be
removed by it, at its expense, within twenty (20) days following the expiration
of this Lease. Lessee agrees that if it should remove any of its personal
property from the Premises that such removal will be conducted in compliance
with applicable laws in all material respects. Any such personal property not
removed from the Premises by Lessee within twenty (20) days following the
expiration of this Lease shall become the property of Lessor. For purposes of
this Agreement, the term "Holdover Period" shall mean the period of time
following the expiration of the Lease, not to exceed twenty days, in which any
personal property of the Lessee remains on the Premises. Lessee agrees that it
will continue to maintain, during the Holdover Period, those insurance policies
contemplated by Section 7 hereof.
4
6. Return of Premises. Lessee agrees that any improvements existing on
the Premises as of the date hereof and remaining on the Premises at the Lease
expiration or termination shall be returned to the condition such improvements
were in when Lessee's occupancy began, subject to deterioration and depreciation
of the Premises occasioned by the passage of time, wear and tear from reasonable
use, and any alterations made in accordance with the terms of Section 5 hereof;
it being expressly acknowledged that Lessee shall return the Premises to Lessor
in a condition that is in compliance with applicable laws in all material
respects; it also being expressly acknowledged that Lessee has no continuing
obligation to use or maintain the Premises, except to the extent necessary to
comply with applicable laws in all material respects.
7. Insurance.
(a) Lessee, at its sole cost and expense, will during the term of
this Lease keep any buildings and improvements on the Premises insured against
loss or damage by fire and against loss or damage by other risks now embraced by
"extended coverage" for an amount not less than eighty percent (80%) of the
replacement value of the improvements to be insured.
(b) Lessee shall, at its cost and expense, secure and maintain
General Liability Insurance written on a so called "Comprehensive" General
Liability Insurance Form, naming Lessor as an additional insured, covering the
Premises against claims on account of bodily injury and property damage incurred
upon or about the Premises, with
5
such levels of coverage customary in the case of premises of similar type or
locale to the Premises.
(c) Lessee shall obtain such other insurance or such other amounts
against other insurable hazards which at the time are commonly insured against
in the case of premises of similar type or locale to the Premises.
(d) All insurance provided for herein shall be effected under valid
and enforceable policies issued by insurers of nationally recognized
responsibility. In addition, all insurance policies provided for herein shall
contain waiver of subrogation provisions to the extent available without
materially increasing Lessee's premium payments. In addition, upon the request
of Lessor, Lessee shall promptly provide Lessor with proof of insurance policies
required hereunder and evidence of payment for premiums relating thereto.
8. Discharge of Liens. Lessee will not create or permit to be created,
and hereby covenants to discharge any lien, encumbrance or charge upon the
Premises, created during the term of this Lease as a result of Lessee's actions
or inactions, and Lessee will not suffer any matter or thing whereby Lessor's
residual estate or the right, title and interest of Lessor in the Premises is
impaired. If, as a result of any action or inaction taken by Lessee, any
mechanic's, laborer's or materialmen's lien shall at any time be filed against
any part of the Premises, Lessee shall cause the same to be discharged of record
within forty-five (45) days after notice to Lessee of the filing thereof.
6
9. Condemnation. Lessor and Lessee agree that if the Premises, or any
part thereof, shall be taken or condemned for public or quasi-public use or
purpose by any competent authority, Lessee shall have no claims against Lessor,
and in any such proceeding Lessee may make a claim for any and all compensation,
including the value of the trade fixtures, diminished utilization of the
Premises, and the value of the unexpired term and other rights of Lessee under
this Lease. The full amount of such award shall be retained by Lessee, free of
any claim by Lessor to any portion thereof. Notwithstanding the foregoing,
nothing herein shall preclude Lessor from making a separate claim against such
competent authority for compensation with respect to its loss attributable to
such condemnation; provided, that such claim shall not diminish the amount of
condemnation compensation to which Lessee is entitled .
10. Damage. If, during the term of this Lease, any portion of the
Premises is damaged or destroyed by fire or otherwise, Lessee shall be under no
obligation to rebuild or repair the same, except to the extent necessary to be
in compliance with applicable laws relating to the Premises in all material
respects. It is expressly acknowledged that all insurance proceeds received as a
result of any damage or casualty to any improvements shall be paid to Lessee and
applied, to the extent necessary, to satisfy its obligations set forth in this
Section 10.
11. Assignment. Lessee may assign and/or sublet its rights and
interests under this Lease to any Affiliate (hereinafter defined) so long as
Lessee shall retain all of its
7
obligations under this Lease. For purposes of this Lease, an "Affiliate" of
Lessee means any entity now or hereinafter controlling, controlled by or under
common control with Lessee.
12. Compliance with Laws. Lessee and its Affiliates may use the
Premises for the operation of the Business (as defined in the Purchase
Agreement) or for any other lawful purpose. During the term of this Lease,
Lessee will use and operate the Premises in compliance with all applicable laws,
rules, regulations, orders, ordinances, judgments and decrees of all
governmental authorities (federal, state, provincial and local) in all material
respects.
13. Indemnification. To the extent it may lawfully do so, Lessee shall
indemnify and hold harmless Lessor and Lessor's agents, directors, officers,
stockholders, employees, invitees, contractors, mortgagees, successors and
assigns from all claims, demands, liabilities, losses, costs, damages, or
expenses (including but not limited to attorney's fees) resulting or arising
from, (a) Lessee's use and operation of the Premises during the term of this
Lease, (b) injuries to persons and/or damage to property occurring during the
term of this Lease and (c) violations of any applicable law caused by Lessee
during the Holdover Period, except, in either case, if resulting (i) from
Lessor's gross negligence or willful misconduct, or (ii) from other matters for
which Lessor is responsible pursuant to the Purchase Agreement. Notwithstanding
anything herein to the contrary, the Lessee's indemnification obligations with
respect to this Section 13 shall continue during any Holdover Period. This
Section 13 shall survive the expiration or termination of this Lease and expire
at the end of the relevant statute of limitations period.
8
14. Access to Premises. At all times during the term of this Lease,
upon reasonable advance notice, Lessor shall have the right (a) to inspect the
Premises (escorted by Lessee's personnel) and (b) to have access to the Premises
for the purpose of conducting environmental remediation, in either case, at a
reasonable hour and under reasonable conditions, and in a manner that will not
unreasonably interfere with Lessee's use and operation of the Premises (except
as contemplated in Section 7.6 of the Purchase Agreement).
15. Option to Purchase. Lessee shall have an exclusive option to
purchase the Premises (the "Purchase Option") for a period commencing from the
date hereof until the earlier to occur of (a) the tenth (10th) anniversary of
the Closing Date (as defined in the Purchase Agreement) or (b) ninety (90) days
after each discrete part of the Cleanup (as defined in the Purchase Agreement)
has been completed pursuant to the provisions of Section 7.6 of the Purchase
Agreement (such ninety (90) day period shall be referred to herein as the
"Completion Period"); provided that, Lessee is not in breach of any of its
indemnification obligations hereunder. It being expressly understood that from
the date hereof until the earlier to occur of (a) the tenth (10th) anniversary
of the Closing Date or (b) the expiration of the Completion Period, Lessor shall
not sell the Premises to any third party. In the event that Lessee has not
exercised its Purchase Option within the Completion Period, Lessor and Lessee
shall jointly execute and deliver an instrument, in recordable form, stating
that the Purchase Option has terminated and Lessor shall be free to sell its
rights and interest in the Premises to any third party; provided, however, that
(a)
9
such third party shall acquire title to the Premises subject to the Lessee's
leasehold interest and other rights hereunder with the exception of the Purchase
Option, which shall terminate by its terms, and (b) Lessor shall remain
responsible for all of its obligations under this Lease unless the third party
acquiring the Premises has, at the time of such acquisition, and agrees, in
writing, with the Lessee, to maintain at all times during this Lease a net worth
of at least Fifteen Million New Zealand Dollars (NZ$15,000,000). Lessee's
Purchase Option shall be subject to the following terms:
(a) Lessee shall give Lessor sixty (60) days advance written notice
of its election to exercise the Purchase Option.
(b) The purchase price for the Premises shall be the sum of One
Thousand Dollars ($1,000.00).
(c) Settlement (the "Closing") of the purchase of the Premises shall
be at a location mutually agreed upon by the parties, and take place within
ninety (90) days of the notice of exercise.
(d) At the Closing, Lessor shall deliver to Lessee a validly
executed Transfer in registrable form that conveys to Lessee the Premises,
together with any other documentation reasonably requested by Lessee in
connection with the transfer of title, including a certificate, signed by a duly
authorized officer of Lessor, in substantially the form as set forth on Schedule
B attached hereto.
10
(e) Lessee shall be responsible for the payment of all registration
and stamp duty recording fees and any and all other costs payable in connection
with the transfer of title to the Premises to Lessee, but shall not be
responsible for any attorneys' fees incurred by Lessor in connection with the
Closing. There shall be no closing adjustments because prior to and after the
transfer of title to Lessee of the Premises, all costs are to be borne by
Lessee.
(f) Notwithstanding anything to the contrary herein, this Lease
shall terminate on the settlement date, and Lessee's rent obligation shall cease
as of that date.
(g) At such time as this Lease shall no longer be in force and
effect, Lessee shall have no right to exercise its Purchase Option hereunder,
and Lessor and Lessee shall jointly execute and deliver an instrument, in
recordable form, stating that the Purchase Option hereunder has terminated.
16. Right to Re-Enter and Take Possession. It is further agreed that in
the event of failure of Lessee to pay Fixed Rent within thirty (30) days after
the due date, or to comply with the other material terms of this Lease, subject
to compliance with applicable law Lessor shall have the right to enter into and
upon the Premises and take possession of the same, but only after giving notice
to Lessee of the condition or term Lessee has violated, and only if Lessee has
failed to cure such term or condition within thirty (30) days after receipt of
such notice (or such longer period as may be required provided Lessee diligently
pursues appropriate curing action). In addition to its right to re-enter and
take
11
possession, Lessor shall also have the right to terminate this Lease upon any
default and exercise any and all other remedies available at law or in equity as
a result of a default by Lessee under this Lease.
17. Notices. All notices, requests, consents and other communications
shall be given in the manner and to the addresses set forth in the Purchase
Agreement.
18. Estoppels. Upon the request of either Lessor or Lessee, each will
execute and deliver to the other an instrument stating, if the same be true,
that this Lease is a true and exact copy of the Lease between the parties
hereto, that there are no amendments hereof (or stating what amendments there
may be), that the same is then in full force and effect and that, to the best of
such party's knowledge, there are then no offsets, defenses or counterclaims
with respect to the payment of rent reserved hereunder or in the performance of
the other terms, covenants and conditions hereof on the part of such party to be
performed, and that as of such date no default has been declared hereunder by
either party hereto and that such party at the time has no knowledge of any
factor or circumstances which it might reasonably believe would give rise to a
default by either party.
19. Lessee's Sole Remedy. In the event of a default by Lessor hereunder
which remains uncured for thirty (30) days after written notice of default (or
such longer period as may be required if Lessee diligently pursues appropriate
curing action), Lessee shall be entitled to seek and pursue any and all other
remedies available at law or in equity; provided however, that the maximum
amount of Lessor's liability for damages or claims
12
hereunder (except for gross negligence or willful misconduct) shall be limited
to the value of Lessor's interest in the Premises and any improvement thereon.
20. Surrender of the Premises. Except as otherwise herein provided, at
the expiration of the term of this Lease, Lessee will peaceably yield up to
Lessor the Premises and any improvements thereon, in the condition required by
this Lease, and subject to no subtenancies.
21. Lessor's Right to Perform Lessee's Covenants. In the event of any
default of Lessee's obligations herein, Lessor may, at its option but without
being obligated to do so, perform the same, and the cost thereof shall be
immediately due and payable from Lessee to Lessor.
22. Entire Agreement. This Lease, the Schedules attached hereto and the
Purchase Agreement contain the entire agreement between the parties hereto with
respect to the Premises and supersede all previous written or oral negotiations,
commitments, representations and agreements.
23. Severability. The provisions of this Lease are severable, and in
the event that any one or more provisions are deemed illegal or unenforceable,
the remaining provisions shall remain in full force and effect.
24. Binding Agreement. All covenants of the parties contained herein
shall be binding upon and inure to the benefit of their respective successors
and assigns.
13
25. No Third Party Beneficiary. This Lease is for the sole benefit of
the parties hereto and no other person, entity or political subdivision of any
federal, state or local government shall be entitled to rely upon or receive any
benefit from this Lease or any provision hereof..
26. Captions. Captions or titles of the sections of this Lease are
inserted solely for convenience of reference and shall not constitute a part of
this Lease, nor shall they affect its meaning, construction or effect.
27. Execution in Counterparts. This Lease has been executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have duly executed the
foregoing.
Witness FIGGIE INTERNATIONAL REAL
ESTATE INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxx, President
/s/ Illegible Signature By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ATTEST: SNORKEL ELEVATING WORK
PLATFORMS LIMITED
/s/ X. Xxxxx Stiff By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- ---------------------------------
Director Name: Xxxxxx X. Xxxxxxxx
Title: Director
STATE OF NEW YORK )
----------------------------
) SS:
COUNTY OF NEW YORK )
----------------------------
Before me, a Notary Public in and for the aforesaid jurisdiction,
personally appeared this date Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
personally well known (or satisfactorily proven) to me to be the President and
Vice President, respectively, of Figgie International Real Estate Inc.,
corporation registered in the State of Delaware in the United States of America,
Lessor in the foregoing Lease bearing date as of the 17th day of November, 1997,
who, being by me first duly sworn, did acknowledge that he, being authorized so
to do, executed said Lease in the name and on behalf of said Corporation, as its
free act and deed for the uses and purposes herein contained.
WITNESS my hand and official seal this 17th day of November, 1997.
/s/ Xxxxxx Xxx
---------------------------------------
Notary Public
[Notarial Seal] My Commission Expires: Notarial Stamp
Affixed
STATE OF NEW YORK )
-----------------------------
) SS:
COUNTY OF NEW YORK )
-----------------------------
Before me, a Notary Public in and for the aforesaid jurisdiction,
personally appeared this date Xxxxxx X. Xxxxxxxx personally well known (or
satisfactorily proven) to me to be the Vice President - Finance and CFO of
Snorkel Elevating Work Platforms Limited, a corporation having its registered
office in Levin, New Zealand, Lessee in the foregoing Lease bearing date as of
the 17th day of November, 1997, who, being by me first duly sworn, did
acknowledge that he, being authorized so to do, executed said Lease in the name
and on behalf of said Corporation, as its free act and deed for the uses and
purposes herein contained.
WITNESS my hand and official seal this 17th day of November, 1997.
/s/ Xxxxxx Xxx
---------------------------------------
Notary Public
[Notarial Seal] My Commission Expires: Notarial Stamp
Affixed
